How partners and members are protected under discrimination law

A point often overlooked by partnerships and limited liability partnerships (“LLPs”) is that their partners and members, whilst being self-employed, are protected by discrimination law in England and Wales, as if they were employees.

These legal safeguards are crucial and were purposely put in place to ensure that partners and members could still be offered protection, and to enable them to operate in a fair and inclusive environment, free from prejudice based on protected characteristics.

Legal framework

The principal legislation governing discrimination in the workplace is the Equality Act 2010 (the “Act”). This provides a uniform legal framework that prohibits discrimination on the basis of nine specific ‘protected characteristics’:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation.

Applicability to partners and members

Under the Act, protection is extended to:

• Partners in a general or limited partnership (as defined under the Partnership Act 1890 or the Limited Partnerships Act 1907)
• Members of an LLP (as defined under the Limited Liability Partnerships Act 2000).

As mentioned above, although these individuals are not ‘employees’ in the conventional sense, the Act explicitly extends its protection to them. Notably, section 44 of the Act covers ‘associates’, a term that includes partners in a partnership and members of an LLP, ensuring that they’re legally protected from discrimination, harassment, and victimisation in connection with their position in the partnership or LLP.

Some case law that exemplifies this is EAD Solicitors LLP v Abrams [2015] UKEAT/0054/15/. In this case the Employment Appeal Tribunal confirmed that LLP members are protected under the Act, in this particular case, on the basis of age discrimination. It was confirmed that that LLP members – even corporate members as was the case here – are covered and protected by the Act.

Forms of unlawful conduct

Under the Act, partners and members are protected against four forms of discriminatory behaviour:

• Direct discrimination: Treating someone less favourably because of a protected characteristic
• Indirect discrimination: Applying a provision, criterion, or practice that disadvantages people with a protected characteristic without a valid justification
• Harassment: Unwanted conduct relating to a protected characteristic that violates a person’s dignity or creates a hostile environment
• Victimisation: Subjecting someone to a detriment because they have complained about discrimination or supported someone else’s complaint.

Practical examples

Here are a few scenarios to illustrate how these protections may apply in practice:

• A female partner in the partnership being repeatedly overlooked for promotion in favour of male colleagues with similar or lesser experience may have a claim for direct sex discrimination
• A disabled LLP member who is excluded from key meetings because of assumptions about their capabilities could argue direct or indirect disability discrimination
• A partner who raises a concern about racial bias in client allocation and is subsequently marginalised may claim victimisation.

Remedies and enforcement

Partners and LLP members who believe they have experienced discrimination can bring a claim to an employment tribunal. While partnerships and LLPs may not be ‘employers’ in the strictest sense, the employment tribunal has jurisdiction over these claims under the extended provisions of the Act.

Potential remedies which the employment tribunal may choose to award could include:

• Compensation for financial loss and injury to feelings
• Declarations that unlawful discrimination has occurred
• Recommendations that the partnership/LLP must take specific positive steps to prevent future discrimination.

The protections afforded by the Act ensure that individuals in partnerships and LLPs are not left vulnerable to discriminatory practices. While the dynamics of such professional relationships differ from standard employment, the law recognises the importance of equality and fairness in all forms of workplace association. Partnerships and LLPs should therefore adopt robust equality policies and provide appropriate regular training to ensure compliance with anti-discrimination obligations.